United States v. Donald Stone, United States of America v. Philip Werber

In these consolidated appeals, Philip Wer-ber and Donald Stone challenge their convictions involving a conspiracy to manufacture and distribute the controlled substance phencyclidine (PCP). They argue primarily that the Government’s abuse of the grand jury process required dismissal of their indictments. We disagree and affirm the convictions, although we remand Stone’s case for resentencing.

In November 1977 Stone and Werber were charged in the Eastern District of Michigan, together with six other individuals, in a ten-count indictment for conspiracy to manufacture and distribute PCP. The overt acts charged in the indictment occurred in the period between April 1971 and February 1977. Stone was indicted on all counts; Werber was indicted only on the first count.

In March 1978 all eight defendants moved, without opposition, for a change of venue from Detroit to Los Angeles. The district court granted the motion of one defendant but did not rule on the other motions. Later that month, the United States Attorney presented evidence to a federal grand jury in Los Angeles concerning the same defendants and the same acts. The grand jury considered some of the testimony of the grand…